Republicans are coming for the right to interstate travel
Also: No, it's not normal that Clarence Thomas's billionaire benefactor is obsessed with Nazi artifacts.
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By Thor Benson
Idaho earlier this month became the first state to pass a bill to prevent people from leaving the state for an abortion. The bill, which was signed into law by Republican Gov. Brad Little, creates a new crime called “abortion trafficking,” making it illegal for an adult to help a minor get an abortion if they are not their legal guardian. That includes simply transporting them to where they’d be receiving abortion care. Penalties include up to five years in prison.
There are a lot of legal and moral questions surrounding this legislation. Some of them were given voice in a letter Washington Gov. Jay Inslee (D) sent to Little before he signed the law expressing concern that “our residents, in particular the women and girls of Washington, will be in grave danger if they travel to your state and find themselves in need of urgent reproductive health care services."
"Make no mistake, Governor Little, the laws of another state that seek to punish anyone in Washington for lawful actions taken in Washington will not stand,” Inslee added.
Republicans in other red states are interested in passing similar legislation, so I decided to reach out to an expert in abortion laws. I spoke with Mary Ziegler, a law professor at UC Davis who focuses on abortion issues, about what the Idaho law means and what could happen next.
The conversation took place just before Idaho’s “abortion trafficking” bill was signed into law. A transcript of the discussion, lightly edited for clarity and length, follows.
Are you surprised that Idaho is going ahead with this law?
It’s not surprising. Both politically and legally, there’s been a lot of concern within the GOP and the anti-abortion movement about interstate travel for abortions, but there are a lot of landmines. It’s not clear that you could stop adults from traveling, constitutionally. There would be challenges to that.
There will be challenges for minors, too, but I guess it’s easier to violate the rights of minors — constitutionally and politically. We’re seeing the GOP fall back on parental rights arguments in a number of settings. When some of the initial bills limiting the right to travel were floated there was a lot of pushback, including from some Republicans who were uncomfortable with the idea of limiting travel.
When it’s minors, the GOP can basically say these stand a better chance of withstanding legal challenges, and it’s less likely to be politically costly. Having said all of that, I don’t think this is supposed to be the end point. I think this is a trial balloon. There’s a playbook for that, as well.
When the attack on Roe v. Wade was being developed in the 1970s and 1980s, it was supposed to be incremental. You were supposed to start, if you’re the anti-abortion movement, with the lowest hanging fruit. That often also involved minors and parental consent. That was viewed to be more popular and more likely to pass muster constitutionally, but it was a stepping stone for eventually attacking the rights of adults, too.
As far as I can tell, the law doesn’t technically prevent interstate travel. It would make it so the police could perhaps stop you when it seems like you’re on your way to the state border. Does that make the bill more constitutionally sound?
It’s designed to forestall some of the constitutional questions, because, in theory, everything the bill is regulating is taking place in the state. It’s still affecting the right to travel but not between states.
There are not just right-to-travel questions here, though. If you’re trying to stop a minor from traveling from one state to another or regulate what happens in a different state, then you’re dealing with questions of whose law is going to kick in, not just whether what you’re doing with this bill is constitutional, so keeping everything within the state might make that piece of things easier.
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Do you think this will be, as we’ve seen with other pieces of legislation, a situation where one state gets the ball rolling and then other states start proposing similar legislation?
Totally. This is a model bill. It’s patterned on a proposal from the National Right to Life Committee, which is one of the major, national anti-abortion groups. It’s not some homegrown Idaho idea. It was intended to be copied by legislatures everywhere. I would expect it to be introduced elsewhere.
Idaho is the first to broach the topic. Once it happens there, other states will probably be more comfortable falling in line, especially because it’s in this framework of parental rights that’s animating a lot of stuff the GOP is doing in other areas.
It seems like the abortion issue did not help Republicans in the 2022 midterms, but Republicans are still pushing these anti-abortion policies. What do you think about the politics here?
What it shows is that the politics of this are not the same for the national GOP and state lawmakers. Ask yourself how Idaho passed this bill. It was because Idaho voters elected or reelected Republican supermajorities and a Republican governor. Whether it’s attributable to political polarization or gerrymandering or both, there are a lot of state legislative seats that are essentially safe seats with the exception of maybe a primary challenge from the right.
What this creates is a dynamic where bills that are probably really bad for the national GOP and that you would never see get through Congress are politically fine or good for state lawmakers. That’s kind of the political dynamic we’re seeing. If anything, it might be politically costly if you’re in the Idaho Republican Party and you’re not doing anything on abortion, because you might get primaried by someone with even more extreme abortion positions than you have.
Obviously this kind of legislation could end up before the courts in the not too distant future. What do the courts think about this?
It’s really hard to predict, because we don’t have very much jurisprudence on the right to travel. Where things get tricky is what it means in practice to violate that right. Saying you have a right doesn’t mean the legislature can’t do certain things.
There is some complexity given that this involves minors. This bill is invoking other kinds of trafficking laws that involve minors. Minors have constitutional rights, but courts are less solicitous of those rights because of the idea that minors are not as able to make decisions and generally don’t have full-fledged rights like adults do. That adds a wrinkle.
Brett Kavanaugh said famously in Dobbs that if people try to stop others from traveling from state to state for abortions, that’s an easy question. He’s essentially suggesting that would clearly be unconstitutional. Of course, that’s not what Idaho is doing here. That makes it more complicated. You also have to consider the politics of this. Whenever there’s some kind of legal ambiguity, the partisan biases of the justices start to creep in.
Of course. It sounds like you think this bill is a step toward trying to prevent adults from traveling for abortions. Is that right?
Yeah. It’s a familiar playbook. After Roe was decided, some of the earliest incremental abortion restrictions you saw were laws requiring minors to notify their parents or get consent before they had an abortion. Those laws were often really effective in states that were not ready for harsher restrictions on abortions, because people saw them as not about the right to an abortion but about parental prerogatives or protecting minors.
It’s easy to frame it as something other than the constitutional right at issue. The thought was this would soften up public opinion or create favorable legal precedent so that later the anti-abortion movement could come back and ask for more. It may be that these Idaho lawmakers are especially worried about minors, but we have no reason to believe that Republicans are comfortable with adults traveling out of state for an abortion. There’s no reason to think this is going to be the end point.
Why does Clarence Thomas's billionaire benefactor own Nazi napkins?
Despite what right-wingers would have you believe, it’s not normal.
By Noah Berlatsky
Right-wing Supreme Court Justice Clarence Thomas’s billionaire benefactor Harlan Crow collects Nazi memorabilia. As a result, we’ve had a news cycles of conservative thought leaders jumping up to insist that owning a signed copy of Mein Kampf is not a disturbing fetish but a good way to show you hate Hitler.
Conservatives will obviously say anything to protect very wealthy conservatives. They’ll say even more extreme anythings to protect their Christofascist Supreme Court majority. Still, the arguments they have been deploying to defend Crow demonstrate a particularly confused view of history.
The right — in this discussion and in general — treat the past as something to be worshipped, rather than as something to be understood and reckoned with. The right treats historical artifacts not as tactile tools for better understanding the past, but as novelty totems. And the more sinister the object, the better.
Who among us does not own Nazi napkins?
Last week, ProPublica released a searing report on Thomas’s decades of corruption. For 20 years, Crow, a real-estate mogul and board member of the conservative think-tank American Enterprise Institute (AEI), has paid for Thomas to go on luxury vacations, traveling on Crow’s yacht and private plane to Crow’s luxury resort, where he meets with other right wing influencers like Federalist Society leader Leonard Leo. The bombshell revelations led the Senate Judiciary Committee to demand that Chief Justice John Roberts investigate Thomas’s conflicts of interest. (As the finishing touches were being put on this newsletter, ProPublica published a follow up story revealing that Crow bought property from Thomas, but Thomas didn’t disclose the deal — a failure that appears to violate a federal disclosure law.)
RELATED FROM PUBLIC NOTICE: A brief primer on why Clarence Thomas doesn't give a damn about ethics
While the initial story focused on Thomas, subsequent coverage also educated us on Crow, one of the nation’s more under-the-radar billionaires, and his odd memorabilia habits. Crow’s collection includes innocuous items, like documents signed by George Washington, and paintings by Renoir and Monet. It also includes statues of conservative heroes Margaret Thatcher and Winston Churchill — people I would not honor, but who a lot of people admire or find unobjectionable. More unconventionally, a wing of Crow’s mansion in Dallas features what he calls a “Garden of Evil” with statues of Communist authoritarian leaders such as Lenin, Stalin, and Nicolae Ceausescu.
And then there are the other items. Crow owns a set of Nazi napkins emblazoned with swastikas, along two watercolors painted by Hitler, a signed copy of Mein Kampf, and also a teapot engraved with Hitler’s initials.
Tech researcher danah boyd, who attended a meeting about the future of democracy at Crow’s house some years back, says she was “deeply shaken by the Nazi memorabilia on display.” That seems like a pretty reasonable reaction.
However, the conservative think tank blob — long watered and cultivated by Crow’s billions — wants you to know that boyd is wrong, and that you can be a normal, well-adjusted person and still keep Hitler paintings on your walls.
Jonah Goldberg, a fellow at AEI, insisted the statues and the Nazi napkins were “an attempt [to] commemorate the horrors of the 20th century in the spirit of ‘never again.’” Daily Wire editor and conservative pundit Ben Shapiro released a video where he argued “a reason you might own this stuff is to remember the things you hate.”
And Brent Orrell, another AEI fellow, popped up to defensively admit, “OK, I do happen to have some Confederate currency in a frame. Does that make me a neo-Confederate or someone who enjoys and derives value from studying the American Civil War?”
History as National Treasure
Orrell’s question raises some others. What does it mean exactly to “enjoy and derive value” from contemplating Confederate currency, or from staring at a painting by Adolf Hitler? Does this kind of supposedly fun pastime actually have anything to do with “studying” history? Is history a thing that is primarily meant to provide the satisfaction of ownership and control?
Orrell seems to buy into what we might call the National Treasure school of history. The semi-infamous 2004 film stars Nicholas Cage as Benjamin Franklin Gates, a Revolutionary war buff and treasure hunter. Gates’s Cage-shaped head is a trove of historical trivia. His expertise helps him follow a trail of clues to an ancient Egyptian treasure hidden by the Masonic secret society to which most of the Founding Fathers belonged.
Ben studies history not to understand either the past or the present, but as a way to further his own journey of empowerment and self-actualization. History is about acquiring capital — cultural and, with all those gold coins, actual. There’s no mention of slavery or Indian removal and genocide in National Treasure. There’s not even really any discussion of why the American colonists wanted to revolt. Instead there’s a lot of gushing about how cool the Declaration of Independence is as a physical object with secret codes on the back. The past is a source of meaning without actually meaning anything. It's a fetish — an inanimate object, which must be mastered in order to access its power.
There’s a parallel here with right wing arguments about memorials to the Confederacy. Donald Trump bemoaned the removal of Confederate statues by declaring, “Sad to see the history and culture of our great country being ripped apart with the removal of our beautiful statues and monuments.”
The statues, in Trump’s eyes, are history and culture themselves. Who the statues represent, or the ideology they were meant to advance, is irrelevant. What’s important is the beauty and power of the fetish, which validates the present by reminding us
, not what happened in the past, but simply that the past existed.
Nazis, or just reactionaries?
Of course, Trump didn’t just defend Confederate monuments at random. He defended them specifically because they are symbols of white supremacy and racist hegemony. “History” for Trump means “Make America Great Again,” which means, broadly, put white people back in control and keep everyone else from voting.
Crow’s defenders insist that he’s not a Nazi. They argue that he keeps Nazi memorabilia because he wants to be reminded of the horrors of the Holocaust. And maybe so. But the fact is that history as fetish and history as reactionary validation tend to reinforce each other.
When she went to Crow’s house, danah boyd said, “Hitler’s painting was signed and just hanging on the wall as art.” Crow treats these artifacts as significant just because they’re significant; the painting is painted by an important person, regardless of why he’s important.
By treating any and all of the past as worth honoring in itself, you inevitably end up honoring the powerful for their power — and often for their misuse of that power. Thus the ongoing vogue for weddings on plantations. The past confers an aura of luxury, depth, and meaningfulness — a luxury, depth, and meaningfulness built from the labor of the enslaved people whom plantation owners exploited and tortured.
People who have their weddings on plantations aren’t necessarily endorsing slavery. Similarly, Crow isn’t necessarily endorsing the Holocaust. They’re just saying that the atrocities committed in the past are less relevant than their personal right to own and control and enjoy that past and its meaning. Harlan Crow’s signed copy of Mein Kampf doesn’t remind us to never repeat genocide. It reminds us that Harlan Crow is really wealthy and can buy whatever he wants, be it a Supreme Court Justice or a Nazi napkin.
If you care about the past and what it means, you wouldn’t casually display Nazi napkins to your guests, because you’d have some respect for the dead and for the living who still struggle against discrimination, hate, and fascist violence. But if your goal is to own the past, and by so doing own the present and the future — well, then it makes perfect sense to collect the detritus of dictators. We don’t know what’s in Harlan Crow’s heart. But we know that, in moments of leisure, he likes to use his vast fortune to subvert democracy, and then lean back and contemplate the paintings of Adolf Hitler.
Tim Scott’s terrible day
By Aaron Rupar
On Wednesday, Sen. Tim Scott launched an exploratory committee for a possible presidential run. Then he spent Thursday staggering around and stepping on rake after rake.
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